Linea Poks vs David Gerrity
Case No: 18CV00938
Hearing Date: Wed May 15, 2019 9:30

Nature of Proceedings: Motion: Compel Responses

TENTATIVE RULING:

As set forth herein, the motion of plaintiffs Linea Polk and Shannon Morgan Polk to compel further responses to the request for production of documents, set four, propounded by defendant David Gerrity is granted in part and denied in part. Gerrity shall serve his further verified responses to request numbers 24, 25, and 26, as explained herein, on or before May 24, 2019. In the event that Gerrity does not by that date serve the verified statement of no claim regarding the absence of Gerrity’s signature as discussed herein, then Gerrity shall also serve on or before May 24, 2019, copies of all responsive documents to request numbers 24, 25, and 26, redacted as permitted herein. Plaintiffs’ request for an award of monetary sanctions is denied.

Background:

On February 23, 2018, plaintiffs Linea Polk and Shannon Morgan Polk filed their original complaint in this action against defendants David W. Gerrity, individually and in his capacity as trustee of the David W. Gerrity Revocable Trust, and Janette Van Hirtum aka Janett Smidt. Defendant Smidt was voluntarily dismissed from this action on May 11, 2018.

The complaint alleges causes of action for (1) negligence, (2) negligent infliction of emotional distress, (3) breach of implied warranty of habitability (common law), (4) breach of implied warranty of habitability (statutory), (5) private nuisance, and (6) breach of contract. These causes of action arise out of allegations of mold contamination in premises owned by defendant Gerrity and leased to plaintiffs. The complaint attaches as exhibit 1 a copy of plaintiffs’ lease for the affected premises. The attached exhibit 1 contains Gerrity’s name in typescript but does not include an inked signature.

On March 7, 2019, plaintiffs served their request for production of documents, set four (RFP), on Gerrity. (Richards decl., ¶ 1 & exhibit 1.) The RFP consists of three requests for production, Nos. 24, 25, and 26.

On April 11, 2019, Gerrity served his response to the RFP. (Richards decl., ¶ 2 & exhibit 2.)

The parties engaged in an unsuccessful meet and confer process. (Richards decl., ¶¶ 3-7.)

On April 23, 2019, plaintiffs filed this motion to compel further responses to the RFP. Plaintiffs also request an order awarding monetary sanctions against Gerrity and his counsel. The arguments in support of the motion are discussed below.

The motion is opposed by Gerrity as discussed below.

Trial is now scheduled for June 5, 2019.

Analysis:

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

“(1) A statement of compliance with the demand is incomplete.

“(2) A representation of inability to comply is inadequate, incomplete, or evasive.

“(3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with both of the following:

“(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b).)

As set forth in the declaration of counsel for plaintiffs, the meet and confer process here consisted of an email exchange between April 20 and April 23. (Richards decl., ¶¶ 4-7 & exhibits 3-6.) Gerrity asserts that the meet and confer process should be disregarded because the emails on behalf of plaintiffs appear to be authored by a non-attorney. The declaration of plaintiffs’ counsel, on the other hand, states that “I”—meaning counsel—sent those emails. (Richards decl., ¶¶ 4, 5.) The “I sent” does not literally appear to be true, but was intended to mean sent at and under counsel’s direction. (Richards reply decl., ¶¶ 1, 2.) (Note: A better practice would be to make that explicit in the email itself so as to avoid misunderstanding.) The court does not find the meet and confer process insufficient because of the manner in which it was carried out.

The meet and confer process was abbreviated in part because the RFP was served sufficiently near the discovery cut-off that a motion to compel would not be timely with a lengthier process. This problem demonstrates the wisdom of planning discovery so that discovery disputes may be timely resolved before the discovery cut-off forces otherwise unnecessary court filings. Here, nevertheless, it is clear that the parties would not likely resolve their disputes without court intervention. The court finds that meet and confer process is minimally sufficient and so the court will address the merits of the motion.

RFP No. 26 is: “Any and all executed/signed leases YOU have entered into with tenants of any real property owned by YOU in the year 2012. For the purposes of this Request for Production, the amount to be paid in rent may be redacted from the produced documents.” RFP Nos. 24 and 25 are the same except for the year.

The response to RFP No. 26 is: “Objection, relevance. This request seek information that is irrelevant to the subject matter of this action, and the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Further, the request is overbroad, burdensome, and oppressive, as it seeks information going back seven years, covering hundreds of tenants and dozens of properties just to search for information that has no bearing on this case. Mr. Gerrity’s former lease agreements with other tenants is not relevant to this case and is unlikely to lead to the discovery of relevant information.”

A party meets its burden of showing good cause by a fact-specific showing of relevance. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Relevance of the instant request is explained by counsel for plaintiffs as follows: “Plaintiffs do not possess a signed copy of the lease by which they took possession of the Subject Property in 2013. A fully executed lease is important to establish Plaintiffs’ breach of contract cause of action. Plaintiffs have sought to discover from Defendant a signed copy of the lease through requests for production on May 16, 2018, September 25, 2018, November 6, 2018, and March 7, 2019. Despite these, prior discovery requests, Defendant has not produced a lease jointly signed by him and Plaintiffs.” (Richards decl., ¶ 8.) In the separate statement, this point is elaborated upon: “This Request is calculated to produce documents that show Defendant’s habit/custom of not signing leases with his tenants. This is relevant and admissible to explain his failure to sign the Plaintiffs’ lease.” (Separate Statement, p. 12, citing Evid. Code, § 1105.)

The sufficiency of the response needs to be viewed in the context of the claim of relevancy asserted by plaintiffs in this motion. An executed copy of the lease between plaintiffs and Gerrity is clearly relevant to plaintiffs’ cause of action for breach of contract both as a matter of authentication and as a matter of evidencing the terms of the contract. The specific lease alleged as exhibit 1 to plaintiffs’ complaint, which is dated December 20, 2012, is not signed in ink by Gerrity. On the other hand, Gerrity filed a cross-complaint on May 7, 2018, alleging, among other things, breach of the lease agreement by plaintiffs. Exhibit A to Gerrity’s cross-complaint is, what appears to be, the same lease agreement alleged by plaintiffs in their complaint, with signatures of plaintiffs but not of Gerrity. To the extent that such a document exists either as signed only by plaintiffs or as also signed by Gerrity, there is good cause for its production and no basis for an objection to the production of that document.

“If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc., § 2031.240, subd. (a).) A further response will be required, consistent with Code of Civil Procedure sections 2031.220 and 2031.230, that all different versions of the lease between the parties (whether the differences are terms, marginalia, or signatures) in the possession, custody, or control of Gerrity will be produced. If Gerrity is unable to produce a copy of the lease with a signature by him (or on his behalf), the response shall include a statement of an inability to comply that specifically states whether such a document ever existed (e.g., Gerrity never signed a copy of that lease) and, if a copy ever existed, why it is not being produced (e.g., the document was lost or destroyed).

With one proviso, all other documents responsive to RFP No. 26 (and all documents responsive to RFP Nos. 24 and 25) have no apparent relevance to this action for which there would be good cause to require a further response to these requests. The asserted relevance is to explain Gerrity’s failure to sign the lease with plaintiffs. No explanation is provided as to why Gerrity’s failure to sign (assuming this is true) is or is not relevant. It appears from Gerrity’s pleading of apparently the same document in his cross-complaint that there is no dispute between the parties as to the terms or effectiveness of the lease based upon the apparent non-existence of Gerrity’s inked signature. (See, e.g., Cross-Complaint, ¶ 6 & exhibit A [“On or about December 20, 2012, the parties executed a written lease (‘Lease Agreement’).”].) In such case, there is no basis for production of such additional documents because there is no apparent issue for which the production would be reasonably calculated to lead to the discovery of admissible evidence.

The proviso is that if Gerrity makes some claim that by virtue of the absence of the Gerrity’s inked signature some contractual rights between the parties do not exist, some contractual rights are not enforceable according to their terms, or some terms of the agreement are different from the terms set forth in contract as alleged (by both parties in their respective complaints), then why Gerrity failed to sign may have some potential relevance as to the enforceable terms of the contract and correspondingly the documents which show when leases were signed may have some potential evidentiary bearing. In the case where this proviso applies, there is good cause for production of these documents.

Once good cause is shown, the burden shifts to Gerrity to justify his objection. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If the proviso applies, the relevance objection has no merit for the reasons set forth above. Gerrity has offered to produce redacted versions of the responsive leases, demonstrating that the objection on the ground of burden is without merit. The time periods for documents sought by RFP Nos. 24, 25, and 26 are those period around the time of the lease between the parties and are not overbroad. There is no apparent basis for asserting a privilege objection.

Accordingly, a further response as to the remaining requests is required either as: (1) verification that the terms of the written lease between the parties are as set forth in Gerrity’s exhibit A to his cross-complaint (or plaintiffs’ exhibit 1) and Gerrity makes no claim that the absence of Gerrity’s signature on that document has any legal effect on the contractual rights between the parties as those rights otherwise would exist had Gerrity signed the document at the time the contract was made; or, alternatively, (2) Gerrity shall provide a further response and produce all responsive documents without objection, subject to redaction of rent and any other financial information set forth in the document. If these documents are produced under alternative two, the identities of the tenants are not to be redacted.

Based upon the above disposition, the court finds that the circumstances make an award of monetary sanctions unjust. The request for award of monetary sanctions will be denied.